IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.26551 and 26552 of 2010 and M.P.Nos.1 and 1 of 2010 S.P.Rajapandian .. Petitioner in W.P.No.26551 of 2010 Hiren Vora @ Ambani .. Petitioner in W.P.No.26552 of 2010 Vs. The Senior Intelligence Officer, DRI, Door No.25, Gopalkrishna Road, T.Nagar, Chennai-17. .. Respondent in
both writ petitions
W.P.Nos.26551 and 26552 of 2010 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records connected with the arrest proceedings of the petitioners in F.No.VIII/48/38/2010-DRI dated 06.08.2010 and 14.09.2010 on the file of the respondent and to quash the same and compensate the petitioners for the illegal arrest and incarceration pursuant to the above impugned order.
For Petitioners : Mr.S.Palanikumar
For Respondent : Mr.N.P.Kumar
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COMMON ORDER
These two writ petitions are filed by the two petitioners challenging the orders, dated 06.08.2010 and 14.09.2010 passed by the respondent Senior Intelligence Officer, D.R.I., Chennai relating to arrest proceedings issued against the petitioners and seek to set aside the same and also for grant of compensation to the petitioners for the illegal incarceration pursuant to the arrest orders.
2.When the matter came up on 24.11.2010, this Court had directed private notice to be served on the respondent. Accordingly, private notice was served. The respondent has filed counter affidavits, dated 14.12.2010 in both writ petitions.
3.Heard the arguments of Mr.S.Palanikumar, learned counsel appearing for the petitioners and Mr.N.P.Kumar, learned Special Public Prosecutor for the Central Government appearing for the respondent.
4.The order dated 6.8.2010 is the Arrest Memo issued against the first writ petitioner. The order had stated that on specific intelligence, in a mahazar proceedings, dated 05.08.2010 and 06.08.2010, the petitioner was intercepted by the Officers of the Directorate of Revenue Intelligence, Chennai (DRI) at the Arrival Hall of the Chennai Airport on 05.08.2010. When the petitioner was arriving from Mumbai by Flight IC 173, he was in possession of lorry transport receipts, which according to him were for transporting Ketamine from Mumbai to Chennai and subsequently to smuggle it out of the Country. Based on the lorry receipts, 150 Kgs. of white colour powder suspected to be Ketamine were seized from the premises of the Transporters. The petitioner also made a voluntary statement, dated 06.08.2010 under Section 108 of the Customs Act, 1962. He had admitted his conscious involvement with the seized contraband materials. Therefore, the respondent had stated that they had reason to believe that in view of the seized contraband, the petitioner had consciously concerned himself in the smuggling of the same, thereby rendering the goods liable for confiscation under Section 113 of the Customs Act, 1962. The materials used for concealment was also liable for confiscation under Section 119 of the Customs Act, 1962. The petitioner had committed offences punishable under Section 135(1)(b) and 135(1)(c) of the Customs Act, 1962. The respondent by the impugned order had directed the arrest of the petitioner on 06.08.2010.
5.In the second writ petition, a similar arrest memo, dated 14.09.2010 was issued to the second writ petitioner. This petitioner was supposed to have supplied the Ketamine to the first writ petitioner. He had also made voluntary statement on 14.09.2010.
6.The contentions of the petitioners were there was no prohibition to export Ketamine Hydrochloride or even Ketamine under the Customs Act. It was alleged that the possession of either Ketamine or Ketamine Hydrochloride is not an offence in India and that it can be legally possessed or dealt with. It has not been prohibited expressly by any statute. It can be presumed that a trade can be done lawfully. Therefore, the second writ petitioner’s alleged possession of Ketamine or its sale to the first writ petitioner cannot be an offence under Law. It was also argued that under the Foreign Trade Development Regulations Act, policies are laid by which certain items are prohibited for export and import and there are restrictions in place for export and import. The policy also declares that all items are freely exportable and freely importable, unless regulated by any notification under the Act. There is no notification under the Customs Act concerning Ketamine or Ketamine Hydrochloride under the Foreign Trade Development Regulations Act that import and export are free unless restrictions are provided.
7.By the notification issued under the FTDR Act, Ketamine is allowed to export subject to obtaining No Objection Certificate from the Narcotics Commissioner. It was also stated that there is no prohibition for having in possession of Ketamine or dealing with Ketamine inside the Country. Hence the arrest was ex facie illegal. It was further argued that in order to make a person liable to punish under Section 135, there has to be contravention of Section 113 of the Constoms Act vis-a-vis the exports only. Under Section 113(d) of the Customs Act, there must be an attempt to export goods within any Customs area for the purpose of export outside India. There must be satisfaction that the goods have been brought within the customs area for the purpose of export. The exercise of power of arrest made against the petitioners is ex facie illegal, violative of the Customs Act and unconstitutional. Further what was seized was only a half white substance. The remand report says that it was a sample tested for Ketamine Hydrochloride, while the arrest memo mentioned it as Ketamine. The report says opposite and by looking at the substance, one cannot say whether it is Ketamine or Ketamine Hydrochloride.
8.It was further argued that the notification under the FTDR Act must be strictly construed and when the notification referred to only Ketamine, it cannot be presumed that it includes Ketamine Hydrochloride. Two division benches of this Court have held that Ketamine Hydrochloride cannot be presumed to be Ketamine. Since the petitioners have been incarcerated on illegal arrest, they are entitled to have the arrest memos quashed and they can be set at liberty.
9.The learned Special Public Prosecutor Mr.N.P.Kumar had stated that the petitioners have been arrested. Even though attempts were made to make it appear that they were subjected to a third degree method, the remand order made by the learned Additional Chief Metropolitan Magistrate, E.O.II, Chennai showed that the accused never complained about any illtreatment even before the Medical Officer and that prima facie case of arrest was made. The learned counsel referred to various averments made by the respondent in the counter affidavits. He had stated that in the voluntary statement given on 6.8.2010 under Section 108 of the Customs Act, 1962, the first writ petitioner had stated as follows:
“4….stated that he and Shri OTC Ibrahim of Chennai have been procuring Ketamine from Shri Hiren Vora alias Ambani and transport the same to Chennai for supply to persons involved in smuggling of Ketamine out of India and that the above seized quantity of 600 Kgs. Of Ketamine was procured from Shri Hiren Vora alias Ambani in Mumbai; that he took Rs.1.08 crores from Shri OTC Ibrahim and paid to Shri Hiren Vora alias Ambani and the same was booked for transport to Chennai in other names; that the same is meant for supply to persons involved in smuggling of which the main persons are S/Shri Selva and Subbu of Chennai and that he and Shri OTC Ibrahim were earlier smuggling Ketamine through Chennai and Mumbai Airports using carriers. Shri S.P.Rajapandian was arrested on 6.8.2010 and was produced before the learned ACMM, E.O.I, Egmore, Chennai and the learned Magistrate was pleased to remand him to judicial custody. At the time of remand, he did not raise any dispute about his voluntary statement.”
10.The second writ petitioner was subsequently located and he also made a voluntary statement on 14.09.2010 under Section 108 of the Customs Act before the respondent Camp at Mumbai. He had corroborated the statement of the first writ petitioner and admitted his supplying the seized quantities of Ketamine to the first writ petitioner. He was fully aware that it was meant for smuggling out of India. It was further stated that the samples drawn at the time of seizure was forwarded to the Customs Control Laboratory and that the Analyst report says that it was positive for Ketamine Hydrochloride. It was further stated that Ketamine Hydrochloride is a prescription under Schedule H of the Drugs and Cosmetics Act, 1940 covered under Rules 65 and 97 of the Drugs and Cosmetics Rules, 1945. A license is required for the manufacture, possession, sale, transport and retail sale and for export out of India, it requires licence and conformation to the labelling and other requirements. It was also stated that the provisions of the Act is clearly attracted as the petitioners have admitted the smuggling the said substance outside India.
11.With reference to the contention that Ketamine has been different from Hydrochloride, in paragraph 12 of the counter, it was averred as follows:
“12.I respectfully submit that Ketamine Hydrochloride is an item prone for smuggling out of India which fact emerges from the number of seizures effected by DRI in the past. Ketamine Hydrochloride is a chemical compound of Ketamine having an identical effect as that of Ketamine and more stable than Ketamine and Ketamine can be retrieved by reverse chemical process. It is because its abuse results in what are described as “out of body” or near death” experiences; that the abuse of Ketamine has been spreading rapidly in the “rave party” scene in East and South East Asia and also in Europe and in the United States; that for the said illicit purpose of abuse by youths, Ketamine Hydrochloride is being smuggled out of India which not only spoils the youth thereby the society as a whole but also will cause strain in the international relationship between sovereign States which the law enforcing agencies in India strive to prevent and offences thereto entails severe punishment in countries like Malaysia, Singapore, Indonesia, etc. extending upto 20 years.”
12.The learned Special Public Prosecutor also produced a notification issued by the Ministry of Finance, New Delhi, dated 10.02.2011 including Ketamine as Psychotropic substance. The Statutory Order 311(E) reads as follows:
“S.O.311(E).-Whereas the Central Government is satisfied, on the basis of information and evidence which has become available to it with respect to the nature and effect of, or the scope of abuse of, any substance (natural or synthetic) or natural material or any salt or preparation of such substance or material, that it is necessary or expedient to add the following substance or natural material or salt or preparation of such substance or material in the list of psychotropic substances specified in the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) Act;
Now, therefore, in exercise of the powers conferred by Section 3 of the said Act, the Central Government hereby makes the following addition in the list of psychotropic substances specified in the Schedule of the said Act, namely:-
In the Schedule to the said Act, after serial number 110 and the entries relating thereto, the following serial number and the entries shall be inserted, namely:-
– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –
Sl.No. International Other Chemical name non-proprietary names non-proprietary names - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 110A Ketamine 2-(2-cholorphenyl)- 2-(methyl amino) cyclohexanone" - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - [F.No.N/11012/4/2010-NC-II]
13.Though the learned counsel for the petitioners attempted to state that the said notification cannot have any retrospective effect, all that notification issued under the provisions of the NDPS Act only shows that Ketamine in any form is a psychotropic substance. As rightly contended, the petitioners’ attempt to transport and store it was only with a view to export the same as admitted by the two petitioners before the authorities. The argument that Ketamine is different from Ketamine Hydrochloride and not covered by the notification issued under the Foreign Trade Development Regulation Act does not advance the case of the petitioners. In fact, in the notification, dated 27.12.2007, it was stated that the export is allowed subject to obtaining No Objection Certificate from the Narcotics Commissioner. The Government itself had stated in the notification, dated 10.2.2011 issued by the Ministry of Finance that all forms and derivatives of Ketamine are also psychotropic substance.
14.It is not the case of the petitioners that they had either Export licence to export the said goods or that they had No Objection Certificate from the Narcotics Commissioner. The argument that Ketamine and Ketamine Hydrochloride are two different substances may be true in terms of advanced Chemistry, but the psychotropic effect of two chemicals are no different from each other. The petitioners cannot be allowed to have any hairsplitting argument on the said issue. The learned counsel for the petitioners placed heavy reliance upon an unreported division bench judgment of this Court in Geethalakshmi Vs. The Secretary to Government of Tamil Nadu, Public (SC) Department, Secretariat, Chennai-9 and another in H.C.P.Nos.1303 and 1306 of 2010, dated 18.6.2010. This is for the purpose of contending that the division bench of this court comprising C.Nagappan and P.R.Shivakumar, J.J. after accepting the argument of the learned Senior Counsel had observed in paragraphs 9 and 11 as follows:
“9….The export of Ketamine Hydrochloride, according t o the detaining authority, is prohibited unless a No Objection Certificate from the Narcotics Commissioner is obtained in accordance with Notification No.67(RE-2007)/2004-2009, dated December 27, 2007. A copy of the notification is found at page 330 of the paper book. The said notification, as rightly pointed out by the learned senior counsel for the petitioners refers to the prohibited item, export of which shall be allowed subject to obtaining a No Objection Certificate from the Narcotics Commissioner, is named Ketamine and not Ketamine Hydrochloride or derivatives of Ketamine…… the earlier division benches have held that the non-application of mind on the part of the detaining authority as to whether Ketamine and Ketamine Hydrochloride are one and the same substance would amount to non-application of mind and that the same would vitiate the orders of detention concerned in those cases, which were also clamped under Section 3(1)(i) of the COFEPOSA Act.
11.In addition to the above, as it has been conceded on behalf of the respondents that Ketamine is different from Ketamine Hydrochloride, an organic compound, the detaining authority ought to have applied its mind as to the applicability of the Notification No.67(RE-2007)/2004-2009, dated December 27, 2007, wherein Ketamine alone has been referred to and Ketamine Hydrochloride and derivatives of Ketamine have not been referred to. The same, no doubt, exhibits non-application of mind on the part of the detaining authority….”
15.It is in this view of the matter, the division bench had quashed the detention order made by the detaining authority belonging to the State Government. Similarly, another division bench in N.K.Jawahar Ali and others Vs. State of Tamil Nadu, rep by its Secretary, Public (SC) Department, Chennai-9 and others reported in (2010) 1 MLJ (Crl) 1125 made a similar conclusion. In paragraph 15, the division bench had observed as follows:
“15.Further, as contended by the learned senior counsel for the petitioners, in the ‘Item/Description’ column of the Notification, it was mentioned only ‘Ketamine’, which item can be exported by obtaining ‘No Objection Certificate’ from the Narcotics Commissioner. The said document does not contain the word ‘Ketamine Hydrochloride’, which is said to have been exported without obtaining permission from the authorities concerned. Though a submission was made by the learned Additional Public Prosectutor that the Ketamine Hydrochloride is nothing but the derivative of ‘Ketamine’, there is no document filed in support of the submission made by the learned Additional Public Prosecutor. Under such circumstances, the Court is of the view that the detaining authority has travelled beyond the averments of documents available before him and inferred that Ketamine Hydrochloride can be exported by obtaining ‘No objection Certificate’, when the document relied upon by him says only Ketamine. Therefore, the said act of the detaining authority shows his non-application of mind in passing the impugned orders.”
16.However, this question in those cases arose in the context of application of mind of the detaining authority and also to find out whether the detaining authority had applied all relevant factors before passing the order or detention. The observation made in releasing the detenue or quashing the detention order is only a prima facie view, so that liberty of citizen will not be curtailed due to orders passed mechanically or due to non application of mind. In both the judgments, the two division benches did not intend to lay down the law on the subject. On the other hand, they were very clear that the detaining authority had failed to produce any material to show that Ketamine Hydrochloride is a derivative of Ketamine. Since these facts were not addressed by the Detaining authority, a finding was made in favour of the detenues, but that cannot be taken advantage by the petitioners to smuggle large quantities of contraband items which are specifically prohibited by the law of the land. There is an international hue and cry that India had become the hub for smuggling such substances throughout the entire Asian Continent and also to other Countries.
17.Even the little doubt that one had is cleared by the notification, dated 10.2.2011 holding that all derivatives of Ketamine are psychotropic substances covered by the NDPS Act. The said notification issued in terms of Section 3 of the Act is by way of clarification and not a notification intended to have any prospective application. Even a lay person with a little knowledge of Chemistry can safely conclude that Ketamine hydrochloride if heated, the hydrochloride part will evaporate and Ketamine alone will remain. It does not require a great Chemist to make this transformation. Therefore, the petitioners cannot be allowed to do things by subterfuge which had been specifically prohibited by law.
18.In any event, the grounds raised by the petitioners cannot come to their rescue for the purpose of setting aside the arrest memos made against them. It is for them to stand the trial before the appropriate criminal court and put forth all defence that are opened to them under law. The writ petitions are misconceived and bereft of legal reasoning. Accordingly, both the writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.
07.06.2011
Index : Yes
Internet : Yes
vvk
To
The Senior Intelligence Officer,
DRI, Door No.25,
Gopalkrishna Road,
T.Nagar,
Chennai-17.
K.CHANDRU, J.
vvk
PRE DELIVERY ORDER IN
W.P.NOs.26551 and
26552 of 2010
07.06.2011